Professional Liability Matters

LATEST INSIGHTS

April 10, 2015 • Defenses, Medical Malpractice, Professional Liability Matters

No Defense of Informed Consent in PA

Informed consent is a critical aspect of the medical profession, and often can provide a defense in med-mal cases. The Pennsylvania Supreme Court, however, recently limited the defense. In Brady v. Urbas, the court held that unless there is an allegation of lack of informed consent, the fact “that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.” The ruling upholds the Superior Court’s holding that a trial judge improperly admitted into evidence consent forms signed by the plaintiff prior to surgery.

April 8, 2015 • Defenses, Legal Malpractice, Professional Liability Matters

Court Clarifies Anti-SLAPP Defense in Malpractice Claims

Strategic Lawsuits Against Public Participation, or SLAPPs, are designed to chill free speech by targeting individuals who speak out on issues of public interest. SLAPP plaintiffs generally do not intend to win on the merits of the lawsuit, but instead seek to harass critics by forcing them to incur legal fees in defending frivolous claims. Consequently, many states have enacted anti-SLAPP statutes to protect petition and free speech rights. These statutes protect statements made before a government body or in a public forum in connection with an issue of public interest from legal liability. Attorneys facing lawsuits for statements made on behalf of a client in a judicial proceeding have looked to anti-SLAPP statutes to provide protection for claims arising from those statements.

April 7, 2015 • Experts, Professional Liability Matters

Choose Your Experts Carefully

Most, if not all, malpractice claims require expert testimony. Thus, those of us who defend professionals are often called upon to retain an appropriate expert to assist in the defense. The reverse is also true: claims against professionals usually require an expert within the defendant’s field who is prepared to testify that the professional breached the applicable standard of care. Whether it be karma, failure to read PL Matters, or otherwise, an attorney in Iowa recently learned this lesson the hard way when a malpractice claim he pursued on behalf of a plaintiff, turned into a malpractice claim against him for failing to secure the right expert.

April 2, 2015 • Malpractice Defenses, Professional Liability Matters

First Impressions Are Lasting: New Defense Available in Delaware for Professionals

In a case of first impression before the Delaware Chancery Court, the defense of in pari delicto was applied in favor of an auditor to defeat claims brought by the receiver of several insolvent insurance entities. This decision sets important and favorable precedent for the defense of accounting firms and other third parties when they become implicated in cases alleging corporate wrongdoing on the part of other defendants.

April 1, 2015 • Legal Malpractice, Professional Liability Matters, Settlement

Malpractice Claim Barred due to Mediation Confidentiality

Many litigants want their day in court; however, the vast majority of cases never make it to trial. Facing heavy dockets, courts are increasingly encouraging parties to resolve claims through ADR methods, like mediation. In order to foster successful mediation, several states have enacted mediation confidentiality statutes, which prevent mediation discussions from being admitted into court if the mediation is unsuccessful. While the purpose of these statutes is to encourage parties to speak openly with the mediator, confidentiality may have unforeseen consequences on the attorney-client relationship.

March 31, 2015 • Employment Practices Liability, Professional Liability Matters

Anxiety Over the ADA

The Americans with Disabilities Act (ADA) is designed to protect people with disabilities from discrimination in the workplace. Under the ADA, an employer must provide a reasonable accommodation to an employee with a disability if the employee requests an accommodation. Employers should take note of a recent decision that includes a new class within the definition of disability. In Jacobs v. N.C. Administrative Office of the Courts, the court reversed the district court and found that social anxiety disorder is a protected disability under the ADA.

March 26, 2015 • Legal Malpractice, Professional Liability Matters

Read It & Weep: Missed Deadline Leads to Significant Consequences

Your friends at PL Matters aim to keep you updated regarding best practices, especially when it comes to professional obligations. However, sometimes best practices just boil down to the basics, including careful reading of court directives. AT&T recently learned this lesson the hard way. Last week, an appeals court ruled that the telecom giant will have to pay $40 million in connection with a case because its attorneys failed to read a court document.

March 24, 2015 • Professional Liability Matters, Risk Management, Sanctions

AOM Failure Closes the Door, but for How Long?

To minimize frivolous professional malpractice claims, many states have enacted affidavit of merit statutes. The range and substance of these statutes can be dizzying; indeed, that’s why we recently published a handy table with requirements and resources for each state. The AOM rules provide defense attorneys with an important tool to help defend malpractice claims in certain jurisdictions. In the extreme scenario, dismissal may be appropriate due to a faulty, lacking or late AOM. But, the question remains, whether the plaintiff has the opportunity to cure that defect and continue with the litigation.

March 19, 2015 • Employment Practices Liability, Professional Liability Matters, Risk Management, Technology

Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.